1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office 

of the Clerk for the convenience of the reader. It has been neither reviewed nor 

approved by the Court and may not summarize all portions of the opinion.

Victoria Crisitello v. St. Theresa School (A-63-20) (085213)

Argued April 24, 2023 -- Decided August 14, 2023 -- Revised August 14, 2023

SOLOMON, J., writing for the Court.

The Court considers whether defendant, the Church of St. Theresa (St. 

Theresa’s), was entitled to summary judgment in a suit brought by Victoria 

Crisitello alleging employment discrimination contrary to the Law Against 

Discrimination (LAD), N.J.S.A. 10:5-1 to -49, when she was fired from her position 

as an art teacher and toddler room caregiver because she became pregnant while 

unmarried in violation of the terms of her employment agreement, which required 

employees to abide by the teachings of the Catholic Church.

The St. Theresa School is a Roman Catholic elementary school that uses the 

official “Archdiocese of Newark Policies on Professional and Ministerial Conduct,”

the first section of which contains its Code of Ethics. In part, the Code of Ethics 

requires employees to “conduct themselves in a manner that is consistent with the 

discipline, norms[,] and teachings of the Catholic Church.” In 2011, St. Theresa’s 

hired Crisitello, a former student, who signed an acknowledgment of her receipt and 

understanding of employment documents including the Code of Ethics. In 2014, 

Sister Lee, the school principal, approached Crisitello about the possibility of 

teaching art full time. During their meeting, Crisitello stated that she was pregnant. 

A few weeks later, Sister Lee told Crisitello that she had violated the Code of Ethics 

by engaging in premarital sex and thus could not remain on St. Theresa’s staff.

Crisitello filed a complaint alleging discrimination based on pregnancy and 

marital status. The trial court granted summary judgment in favor of St. Theresa’s, 

finding that “the LAD clearly protects a religious institution . . . in requiring that an 

employee . . . abide by the principles of the Catholic faith,” and no suggestion that

Crisitello was terminated “for her pregnancy or marital status, per se.” It held 

Crisitello was instead terminated for “violating the tenets of the Catholic Church, 

thereby violating the Code of Ethics.” It also found the First Amendment barred her 

claims. The Appellate Division reversed, holding that the First Amendment barred 

neither Crisitello’s claims nor “carefully measured discovery”; that the LAD did not 

bar consideration of the matter under the framework of McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973); and that Crisitello had made a prima facie case.
2

On remand, the trial court compelled discovery consistent with the Appellate 

Division’s decision, and it again granted summary judgment in favor of St. 

Theresa’s. The court explained that “the record is bare of any evidence that even 

remotely suggests that [Crisitello’s pregnancy out of wedlock] is not the real reason 

for her termination.” The trial court also found significant evidence in the record 

that St. Theresa’s supports its married teachers who become pregnant and that 

another Catholic school, also within the Archdiocese of Newark, fired an unmarried 

male teacher after he revealed that his girlfriend was pregnant with their child.

The Appellate Division reversed, holding that “knowledge or mere observation

of an employee’s pregnancy alone is not a permissible basis to detect violations of 

the school’s policy and terminate an employee.” 465 N.J. Super. 223, 227, 238, 242 

(App. Div. 2020). The court distinguished this case from Our Lady of Guadalupe 

School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), on the basis that Crisitello did 

not perform “vital religious duties.” Id. at 235-36. The appellate court ruled that 

despite Crisitello’s concession -- that she knew premarital sex violated the tenets of 

the Catholic Church -- neither the Code of Ethics nor the employee handbook 

expressly mentioned premarital sex or that it would result in termination. Id. at 242.

St. Theresa’s filed a notice of appeal as of right under Rule 2:2-1(a)(1) as well 

as a petition for certification, which the Court granted. 246 N.J. 315 (2021).

HELD: The “religious tenets” exception of N.J.S.A. 10:5-12(a) -- “it shall not be an 

unlawful employment practice” for a religious entity to follow the tenets of its faith 

“in establishing and utilizing criteria for employment” -- is an affirmative defense 

available to a religious entity when confronted with a claim of employment 

discrimination. Here, it is uncontroverted that St. Theresa’s followed the religious 

tenets of the Catholic Church in terminating Crisitello. St. Theresa’s was therefore 

entitled to summary judgment and the dismissal of the complaint with prejudice.

1. The LAD provides in part that it is unlawful for an employer “to discharge” an 

employee “because of . . . marital status . . . [or] pregnancy.” N.J.S.A. 10:5-12(a). 

Although the LAD encompasses a wide variety of employment actions, it 

intentionally, and explicitly, declines to create a cause of action for others. For 

example, “it shall not be an unlawful employment practice . . . for a religious 

association or organization” to follow “the tenets of its religion in establishing and 

utilizing criteria for employment of an employee.” Ibid. Because the Legislature 

thus expressly prescribed an exception to liability under the LAD based on a 

religious institution’s reliance on the tenets of its faith in setting employment 

criteria, the religious tenets exception is an affirmative defense which must be pled 

and proven. If it is pled and proven, the employer need not contest the plaintiff’s 

allegations. In LAD cases where a religious employer invokes the religious tenets 

exception, the employer must demonstrate that the challenged employment decision 
3

relied solely on employment criteria adopted pursuant to the tenets of its religion. If 

the plaintiff employee fails to raise a genuine dispute of material fact as to whether 

the challenged decision relied solely on the religious tenets of the employer, then the 

affirmative defense stands as an absolute bar to liability. Determining whether a 

religious employer’s employment action was based exclusively on the tenets of its 

religion requires application of only neutral principles of law and does not 

impermissibly entangle the courts in ecclesiastical matters. (pp. 20-26)

2. Based on the facts of this case, St. Theresa’s has validly asserted the religious 

tenets exception as an affirmative defense. The undisputed evidence of record 

shows that Crisitello confirmed receipt and understanding of documents including 

the Code of Ethics. The religious tenets exception allowed St. Theresa’s to require 

its employees, as a condition of employment, to abide by Catholic law, including 

that they abstain from premarital sex. Crisitello, a practicing Catholic and graduate 

of the St. Theresa School, acknowledged that St. Theresa’s required her to abide by 

the tenets of the Catholic faith, including that she abstain from premarital sex, as a 

condition of her employment. The record evidence demonstrates that St. Theresa’s 

consistently maintained its position that Crisitello was terminated for violating 

Catholic law by engaging in premarital sex. And Crisitello has presented no 

evidence to counter St. Theresa’s asserted position. The Court rejects the Appellate 

Division’s novel suggestion that Crisitello’s firing was evidence of pretext simply 

because St. Theresa’s did not “survey” its employees to discover other 

transgressions of the faith. Neither the LAD nor case law requires such an 

investigation, and the Court declines to impose this burden. Here, because Crisitello 

offers no evidence that the reason given for her termination was false, there exists no 

dispute of material fact and St. Theresa’s is entitled to judgment as a matter of law. 

The religious tenets exception of the LAD precludes recovery here. The Court does

not reach the constitutional questions presented. (pp. 27-32)

REVERSED.

JUSTICE PIERRE-LOUIS, concurring, agrees that Crisitello’s LAD action 

fails but departs from the majority’s analysis of the religious tenets exception as an 

affirmative defense such that the McDonnell Douglas framework does not apply. In 

Justice Pierre-Louis’s view, plaintiff’s claim fails because she has failed to meet her 

evidentiary burden at step three of the McDonnell Douglas framework.

CHIEF JUSTICE RABNER, JUSTICE PATTERSON, and JUDGE HAAS 

(temporarily assigned) join in JUSTICE SOLOMON’s opinion. JUSTICE 

PIERRE-LOUIS filed a concurrence. JUSTICES WAINER APTER and 

FASCIALE and JUDGE SABATINO (temporarily assigned) did not participate.
1

SUPREME COURT OF NEW JERSEY

A-63 September Term 2020

085213

Victoria Crisitello,

Plaintiff-Respondent,

v.

St. Theresa School,

Defendant-Appellant.

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at

465 N.J. Super. 223 (App. Div. 2020).

Argued

April 24, 2023

Decided

August 14, 2023

Revised

August 14, 2023

Peter G. Verniero argued the cause for appellant (Sills 

Cummis & Gross, and Carella, Byrne, Cecchi, Olstein, 

Brody & Agnello, attorneys; Peter G. Verniero, Michael 

S. Carucci, and Christopher H. Westrick, of counsel and

on the briefs).

Thomas A. McKinney argued the cause for respondent 

(Castronovo & McKinney, attorneys; Thomas A. 

McKinney and Edward W. Schroll, of counsel and on the 

brief).

Mark E. Chopko of the District of Columbia and 

Pennsylvania bars, admitted pro hac vice, argued the 

cause for amicus curiae New Jersey Catholic Conference 

(Stradley Ronon Stevens & Young, and McKernan, 

McKernan & Godino, attorneys; Mark E. Chopko,
2

Marissa Parker, Robert J. Norcia, Martin McKernan, and 

James J. Godino, Jr., of counsel and on the brief).

Eric C. Rassbach (The Becket Fund for Religious 

Liberty) of the California, Texas, and District of 

Columbia bars, admitted pro hac vice, argued the cause 

for amicus curiae Agudath Israel of America (Roselli 

Griegel Lozier & Lazzaro, attorneys; Eric C. Rassbach, 

Mark M. Roselli, and Daniel D. Benson (The Becket 

Fund for Religious Liberty) of the Utah and District of 

Columbia bars, admitted pro hac vice, of counsel and on 

the brief).

Jeremy Feigenbaum, Solicitor General, argued the cause 

for amicus curiae Attorney General of New Jersey 

(Matthew J. Platkin, Attorney General, attorney; Jeremy 

Feigenbaum and Alec Schierenbeck, Deputy Solicitor

General, of counsel, and Eve Weissman and Nadya 

Comas, Deputy Attorneys General, on the brief).

Ronald K. Chen argued the cause for amici curiae 

American Civil Liberties Union of New Jersey and 

American Civil Liberties Union (Rutgers Constitutional 

Rights Clinic Center for Law & Justice, attorney; Lindsey 

Kaley (American Civil Liberties Foundation) of the New 

York bar, admitted pro hac vice, of counsel and on the 

brief, and Ronald K. Chen, Jeanne LoCicero (American 

Civil Liberties Union of New Jersey Foundation),

Alexander Shalom (American Civil Liberties Union of 

New Jersey Foundation), and Daniel Mach (American 

Civil Liberties Union Foundation) of the New York and 

District of Columbia bars, admitted pro hac vice, on the 

brief).

Natalie J. Kraner argued the cause for amici curiae 

National Women’s Law Center, Americans United for 

Separation of Church and State, The Anti-Defamation 

League, California Women’s Lawyers, The 

Clearinghouse on Women’s Issues, The Feminist 

Majority Foundation, Gender Justice, GLBTQ Legal 
3

Advocates & Defenders, The Kentucky Association of 

Sexual Assault Programs, KWH Law Center for Social 

Justice and Change, Interfaith Alliance Foundation, Legal 

Voice, The National Asian Pacific American Women’s 

Forum, The National Association of Social Workers, The 

National Association of Women Lawyers, The National 

Coalition Against Domestic Violence, The National 

Council of Jewish Women, National Crittenton, The 

Reproductive Health Access Project, The Sikh Coalition, 

The Women’s Law Center of Maryland, Inc., 

Transgender Law Center, Ujima, Inc: The National 

Center on Violence Against Women in the Black 

Community, Women Employed, Women With A Vision, 

Inc., The Women’s Bar Association of the District of 

Columbia, The Women’s Bar Association of the State of 

New York, and Women’s Law Project (Lowenstein 

Sandler, attorneys; Natalie J. Kraner, Matthew J. Platkin, 

Stephanie Ashley, Markiana Julceus, Sunu P. Chandy and

Laura Narefsky (National Women’s Law Center) of the 

New York bar, admitted pro hac vice, Bradley Girard 

(Americans United for Separation of Church and State) of 

the New York and District of Columbia bars, admitted 

pro hac vice, and Richard B. Katskee (Americans United 

for Separation of Church and State) of the District of 

Columbia and Maryland bars, on the brief).

James E. Burden submitted a brief on behalf of amicus 

curiae New Jersey Association for Justice (Javerbaum 

Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; 

James E. Burden, on the brief). 

JUSTICE SOLOMON delivered the opinion of the Court.

The Church of St. Theresa (St. Theresa’s) owns and operates the St. 

Theresa School. St. Theresa’s terminated art teacher and toddler room 

caregiver Victoria Crisitello for violating the terms of her employment 
4

agreement. That agreement required employees to abide by the teachings of 

the Catholic Church and forbade employees from engaging in premarital sex; 

Crisitello, who was unmarried, had become pregnant. In response to her 

firing, Crisitello filed a complaint against St. Theresa’s alleging employment 

discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 

10:5-1 to -49, based on pregnancy and marital status. St. Theresa’s countered

that its decision to terminate Crisitello was protected by both the First 

Amendment and the LAD.

In this appeal, we examine whether the Appellate Division properly 

reversed the trial court’s grant of summary judgment and dismissal of the 

complaint with prejudice in favor of St. Theresa’s. In doing so, we must 

consider the LAD, its “religious tenets” exception, and the McDonnell 

Douglas1 burden-shifting framework. Because we decide this case on narrow, 

statutory grounds, we decline to rule on the parties’ constitutional arguments 

concerning the First Amendment.

We first hold that the “religious tenets” exception of N.J.S.A. 10:5-12(a)

-- “it shall not be an unlawful employment practice” for a religious entity to 

follow the tenets of its faith “in establishing and utilizing criteria for 

employment” -- is an affirmative defense available to a religious entity when 

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
5

confronted with a claim of employment discrimination. Second, the 

uncontroverted fact is that St. Theresa’s followed the religious tenets of the 

Catholic Church in terminating Crisitello. We thus conclude that St. Theresa’s 

was entitled to summary judgment and that the trial court correctly dismissed 

the complaint with prejudice.

I.

A.

The St. Theresa School is a Roman Catholic elementary school operating 

within the Archdiocese of Newark. The school uses the official “Archdiocese 

of Newark Policies on Professional and Ministerial Conduct” (Ministerial 

Policies), the first section of which contains its Code of Ethics. In part, the 

Code of Ethics requires employees to “conduct themselves in a manner that is 

consistent with the discipline, norms[,] and teachings of the Catholic Church.” 

St. Theresa’s also has a faculty handbook that explains the importance of 

teachers “express[ing] a value-centered approach to living” and serving “as 

positive role models for their students.”

In 2011, St. Theresa’s hired Crisitello, a former student, to work as a 

caregiver in the toddler room. When she was hired, Crisitello signed an 

acknowledgment form which explained: “My signature below indicates that I 

have received a copy of the Policies on Professional and Ministerial Conduct 
6

adopted by the Archdiocese of Newark; and that I have read and understand 

those Policies, including the Archdiocesan Code of Ethics, and agree to abide 

by all of the Policies and the Code of Ethics.” About a year later, Crisitello 

was asked to teach art to elementary school students in addition to working in 

the toddler room. In that role, she taught two days a week and worked one day 

in the toddler room. In 2014, Sister Lee, the school principal, approached 

Crisitello about the possibility of her teaching art full time. Crisitello, who 

was unmarried at the time, told Sister Lee that she wanted a raise if she 

accepted the new role, explaining that she was pregnant and that it would thus 

be more taxing to work additional hours.

A few weeks later, Sister Lee met with Crisitello to explain that she had 

violated the Code of Ethics by engaging in premarital sex and thus could not 

remain on St. Theresa’s staff. Sister Lee offered Crisitello the option of 

resigning or being terminated. Ultimately, Crisitello was terminated and 

replaced by a married woman with children.

B.

1.

In April 2014, Crisitello filed a charge against St. Theresa’s with the

Equal Employment Opportunity Commission (EEOC or Commission), alleging 

violations of Title VII of the Civil Rights Act. The EEOC directed St. 
7

Theresa’s to provide its position on the issues charged with supporting 

documentation. St. Theresa’s provided supporting documents and responded 

that “Crisitello was not terminated because of her pregnancy. She was 

terminated for violation of the Code of Professional and Ministerial Conduct

. . . and not following the tenets of the Roman Catholic faith by engaging in 

sex outside of marriage.”

Ultimately, the EEOC was unable to “conclude that the information 

obtained establishes a violation” of the Civil Rights Act. The Commission 

noted that its conclusion was not tantamount to a finding of compliance with 

Title VII and that Crisitello could still file an action in federal district court. 

2.

Later that same year, Crisitello filed a complaint against St. Theresa’s in 

New Jersey Superior Court alleging that St. Theresa’s violated the LAD by 

discriminating against her on the basis of pregnancy (count one) and marital 

status (count two). According to Crisitello’s complaint, the school’s 

explanation for her termination -- her violation of the tenets of the Catholic 

faith -- was “mere pretext.”

In early 2015, St. Theresa’s moved for summary judgment and dismissal 

of the complaint, arguing that it lawfully terminated Crisitello’s employment.

The trial court denied the motion, citing the need for discovery. The parties 
8

disputed the scope of discovery, and the court granted Crisitello’s request for 

information related exclusively to St. Theresa’s employees who were pregnant 

during the period of Crisitello’s employment, subject to a confidentiality order. 

The court denied the remainder of Crisitello’s discovery requests. 

After the parties exchanged limited discovery, St. Theresa’s again 

moved for summary judgment and to dismiss the complaint. In a November

2016 order, the court granted summary judgment in favor of St. Theresa’s, 

dismissing the complaint with prejudice and determining that a “plain reading 

of the LAD clearly protects a religious institution, such as St. Theresa’s, in 

requiring that an employee, such as [Crisitello], abide by the principles of the 

Catholic faith.” The court found nothing to suggest that Crisitello was 

terminated “for her pregnancy or marital status, per se,” and held that she was 

instead terminated for “violating the tenets of the Catholic Church, thereby 

violating the Code of Ethics and Archdiocese Policies.” 

In explaining its decision, the court noted that Crisitello’s act of 

revealing her pregnancy to Sister Lee defeated her argument that she was 

“singled out.” The court observed that Crisitello lacked viable comparators 

because all other pregnant women employed by St. Theresa’s were married. 

Moreover, the court noted that another school within the Archdiocese of 

Newark -- utilizing the same ministerial policies and code of ethics as St. 
9

Theresa’s -- had fired an unmarried male employee after learning that he had 

impregnated his partner. The court declined to entertain Crisitello’s “novel 

suggestion” that, in order to defeat her claim, St. Theresa’s should “survey” its 

employees to discover whether any of them had committed transgressions of 

the faith. Last, the court found that the First Amendment barred Crisitello’s 

claims, even if the LAD’s religious tenets exception did not apply, because 

secular court involvement here would be an unconstitutional entanglement 

with religious affairs. 

The trial court denied Crisitello’s motion for reconsideration.

3.

Crisitello appealed, challenging the trial court’s orders denying 

discovery and reconsideration, and granting summary judgment and dismissal 

of the complaint. The Appellate Division reversed the orders in an 

unpublished decision and remanded for further proceedings.

The Appellate Division agreed in principle with the trial court that 

secular courts cannot decide purely religious disputes, but it found that the

dispute at the heart of this case -- which it viewed as whether St. Theresa’s 

asserted reason for termination was pretextual -- was within the bounds of civil 

jurisdiction. The Appellate Division explained that “when the pretext inquiry 

neither traverses questions of the validity of religious beliefs nor forces a court 
10

to choose between parties’ competing religious visions, [it] does not present a 

significant risk of entanglement.” The Appellate Division thus concluded that 

the First Amendment barred neither Crisitello’s claims nor “carefully 

measured discovery” and proceeded to consider the LAD.

The court interpreted N.J.S.A. 10:5-12(a) to mean that “[d]iscriminatory 

intent or any other element of an LAD claim cannot be established by a 

religious institution requiring an employee to follow the tenets of its religion 

as a condition of employment.” The Appellate Division found, however, that 

the LAD did not bar consideration of this matter under the familiar McDonnell 

Douglas framework,2concluding that Crisitello had made a prima facie case 

for discrimination under the LAD.

As to the first prong of McDonnell Douglas, the court found that 

Crisitello had (1) established membership in a protected class -- pregnant 

2

In McDonnell Douglas, the United States Supreme Court set forth the 

framework for proving a case of employment discrimination under Title VII of 

the Civil Rights Act. 411 U.S. at 802. Under that regime, a plaintiff employee

bears the initial burden of establishing a prima facie case of discrimination. 

Ibid. If the plaintiff does so, the burden shifts to the defendant employer to 

articulate a “legitimate, nondiscriminatory reason” for the complained-of 

employment decision. Id. at 802-03. If the defendant provides such a reason, 

the plaintiff must “be afforded a fair opportunity to show that [the defendant’s] 

stated reason” for the employment decision was “in fact pretext.” Id. at 803-

05. Our courts apply the McDonnell Douglas framework to employment 

discrimination claims cognizable under the LAD. See, e.g., Meade v. 

Township of Livingston, 249 N.J. 310, 328 (2021).
11

women; (2) proved her qualifications for her position; and (3) suffered an 

adverse employment action -- termination. The court also found that the 

circumstances of her firing gave rise to an inference of unlawful discrimination 

and rejected the trial court’s conclusion that Crisitello’s nonmarital pregnancy 

rendered her unqualified for her job. Because St. Theresa’s had asserted a 

nondiscriminatory reason for terminating Crisitello, the Appellate Division 

turned to the third prong of McDonnell Douglas -- whether that asserted reason 

was pretextual. 

The court explained that whether St. Theresa’s asserted reason was 

pretextual or not required “inquiry into material questions of fact,” and that 

summary judgment was therefore inappropriate at that juncture. The court 

noted that the lack of evidence before the trial court on summary judgment was 

“directly attributable” to that court’s own discovery limitations. The Appellate 

Division thus reversed the relevant orders and remanded for discovery as to 

how St. Theresa’s treated similarly situated employees that it knew were in 

violation of its Code of Ethics.

C.

1.

On remand, the trial court compelled discovery consistent with the 

Appellate Division’s decision. After the close of discovery, St. Theresa’s 
12

again sought summary judgment. In April 2019, the court heard argument on 

the motion and again granted St. Theresa’s motion for summary judgment,

dismissing the complaint with prejudice.

The court explained that “the record is bare of any evidence that even 

remotely suggests that [Crisitello’s pregnancy out of wedlock] is not the real 

reason for her termination” and noted that Crisitello had not demonstrated that 

“other single pregnant teachers or [unmarried] male teachers who had 

impregnated another had not been fired,” or “that married teachers who 

violated the tenets of the Faith were treated differently than single teachers.” 

The court found that Crisitello likewise had not identified any “inconsistency 

or implausibility” in St. Theresa’s explanation. In other words, the court found 

that Crisitello presented no comparators through which to establish disparate 

treatment. The trial court also found significant evidence in the record that St. 

Theresa’s supports its married teachers who become pregnant and that another 

Catholic school, also within the Archdiocese of Newark, fired an unmarried 

male teacher after he revealed that his girlfriend was pregnant with their child. 

Thus, the trial court held on remand that Crisitello failed to show that St.

Theresa’s “proffered reason [for her termination] was false and that the real 

reason was motivated by discriminatory intent.” The trial court concluded that 

no reasonable factfinder could rule in Cristello’s favor.
13

2.

Crisitello appealed, and the Appellate Division reversed the trial court’s 

judgment, holding that “knowledge or mere observation of an employee’s 

pregnancy alone is not a permissible basis to detect violations of the school’s 

policy and terminate an employee,” and reaffirming its earlier determination 

that Crisitello made a prima facie case of discrimination under the LAD. 

Crisitello v. St. Theresa Sch., 465 N.J. Super. 223, 227, 238, 242 (App. Div. 

2020).

The Appellate Division also distinguished this case from Our Lady of 

Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049 (2020), 

decided under the First Amendment to the United States Constitution during 

the pendency of this appeal. The appellate court reasoned that the plaintiffs in 

Guadalupe performed “vital religious duties” whereas Crisitello did not. 

Crisitello, 465 N.J. Super. at 235-36. The court also rejected the notion that 

Crisitello’s agreement to serve as an exemplar of the Christian faith and 

abstain from “immoral conduct” rendered her something other than a lay 

teacher for purposes of Guadalupe. Id. at 236.

Applying the standard for summary judgment, the Appellate Division 

explained that a reasonable factfinder could rule in Crisitello’s favor. Id. at 

237. As for the first step of the McDonnell Douglas framework, the court 
14

reiterated its earlier conclusion that Crisitello had stated a prima facie case of 

discrimination. Id. at 237-38. Concerning the second step, the court explained 

that “assuming the terms of [Crisitello’s] employment included an enforceable 

agreement [that] she would not engage in premarital sex, [St. Theresa’s has] 

satisfied its ‘burden of production.’” Id. at 239.

The court also found that Crisitello satisfied the third prong of 

McDonnell Douglas. Id. at 241. Citing to Cline v. Catholic Diocese of 

Toledo, 206 F.3d 651, 667 (6th Cir. 1999), and Redhead v. Conf. of SeventhDay Adventists, 440 F. Supp. 2d 211, 223 (E.D.N.Y. 2006), the Appellate 

Division explained that an employer cannot rely on the mere observation of a 

woman’s pregnancy to identify instances of premarital sex. Id. at 240-42. 

According to the Appellate Division, such a mode of detection is itself

evidence of pretext because only women can get pregnant. Id. at 241. Here, 

the Appellate Division noted that St. Theresa’s made no effort to discover 

whether other teachers had engaged in premarital sex or other ethical 

violations and found that such a lack of investigation raised an issue of 

material fact as to whether St. Theresa’s enforced its policy in a discriminatory 

manner. Id. at 241-42. 

Further, the Appellate Division ruled that despite Crisitello’s concession 

-- that she knew premarital sex violated the tenets of the Catholic Church --
15

neither the Code of Ethics nor the employee handbook expressly mentioned 

premarital sex or that it would result in termination. Id. at 242.

D.

Citing the First Amendment to the United States Constitution, St. 

Theresa’s filed a notice of appeal as of right under Rule 2:2-1(a)(1). St. 

Theresa’s also filed a self-described “protective” petition for certification, 

arguing that its decision to terminate Crisitello’s employment was protected 

under state law. We granted the petition. 246 N.J. 315 (2021).

We also granted leave to appear as amici curiae to the New Jersey 

Catholic Conference; Agudath Israel of America; the New Jersey Attorney 

General; the American Civil Liberties Union of New Jersey and the American 

Civil Liberties Union (jointly, ACLU); the National Women’s Law Center, 

Americans United for Separation of Church and State, “and 26 additional 

organizations” (collectively, NWLC); and the New Jersey Association for 

Justice (NJAJ). 

II.

A.

St. Theresa’s asks us to reverse the Appellate Division. Regarding the 

LAD, St. Theresa’s argues that the statute’s religious tenets exception is an 

affirmative defense that preserves a wall of separation between church and 
16

state and exists to relieve religious employers from the burdens of employment 

litigation. St. Theresa’s further argues that if the LAD’s religious tenets 

exception does not mandate dismissal, Crisitello had to show evidence of

“disparate treatment” or prove that St. Theresa’s asserted reason for her 

termination was “false, implausible or inconsistently applied.” St. Theresa’s 

argues that the Appellate Division’s allowed Crisitello to clear a much lower

hurdle -- merely showing that St. Theresa’s did not affirmatively investigate 

the conduct of its entire teaching staff to discover other violations of Catholic 

law. 

St. Theresa’s also advances constitutional bases for reversing the 

Appellate Division’s decision. First, St. Theresa’s claims that the ministerial 

exception, as most recently explained in Guadalupe, applies to lay teachers 

with religious duties like Crisitello. In addition to the ministerial exception, 

St. Theresa’s argues that general considerations of church autonomy protect its 

decision to fire Crisitello because, on these facts, church doctrine is 

“inextricably linked” with Crisitello’s claims and secular adjudication would 

therefore interfere with religious autonomy.

The Catholic Conference and Agudath Israel support St. Theresa’s 

position and stress that allowing Crisitello’s suit to move forward would 
17

infringe upon the school’s decisions regarding faith, doctrine, and internal 

governance. 

B.

Crisitello argues that this case presents “a factual dispute” as to whether 

St. Theresa’s proffered religious reason for her termination -- engaging in 

premarital sex -- is pretext for pregnancy and marital-status discrimination in 

violation of the LAD, and that summary judgment was therefore inappropriate. 

Specifically, Crisitello notes that other courts have deemed it evidence of 

pretext for a religious employer to enforce a prohibition on premarital sex 

based on observations of pregnancy. Crisitello rejects the argument that the 

ministerial exception applies because, as a lay teacher, she did not perform 

religious duties as required by Guadalupe. Crisitello asserts that the First 

Amendment is no obstacle to her claims.

The Attorney General supports Crisitello’s view of the applicable laws

in this appeal. Regarding the LAD, the Attorney General interprets the 

religious tenets exception as embracing the traditional burden-shifting 

framework and submits that this case hinges on whether Crisitello has made a 

sufficient showing of pretext. The Attorney General claims that because the 

New Jersey Division on Civil Rights is charged with enforcing the LAD, we 

should defer to its interpretation of the statute. 
18

Turning to the constitutional issues, the Attorney General urges us to 

reject St. Theresa’s views on the ministerial exception because such an 

interpretation would leave employees of religious institutions without the 

protection of antidiscrimination law. The Attorney General asserts that “a 

general expectation that employees exemplify religious values and integrate 

them into their work is [not] enough to make an employee subject to the 

ministerial exception” under Guadalupe.

The ACLU contends that the LAD’s religious tenets exception does not 

“permit a religious association to use any . . . protected criteria, apart from 

religious affiliation, in making employment decisions” and asks us to require 

that employment agreements “clearly and unambiguously signal” that the 

plaintiff is surrendering the right to pursue statutory LAD claims in court. 

The NWLC and NJAJ likewise support Crisitello’s position. They focus 

on the First Amendment, touching on the LAD only to note that the LAD’s 

religious tenets exception should not be read to exceed the ministerial 

exception. Additionally, the NJAJ argues that, because this case does not 

involve an interpretation of religious tenets, St. Theresa’s decision to terminate 

Crisitello is subject to judicial scrutiny, which should be guided by the 

McDonnell Douglas burden-shifting framework.
19

III.

We review the grant or denial of summary judgment de novo and apply 

the same legal standard as the trial court. Samolyk v. Berthe, 251 N.J. 73 

(2022). Summary judgment is appropriate “when ‘the pleadings, depositions, 

answers to interrogatories and admissions on file, together with the affidavits, 

if any, show that there is no genuine issue as to any material fact challenged 

and that the moving party is entitled to a judgment or order as a matter of 

law.’” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995) 

(quoting R. 4:46-2). Because St. Theresa’s moved for summary judgment, we 

view the evidence in the light most favorable to Crisitello and draw all

reasonable inferences in her favor. See Winberry Realty P’ship v. Borough of 

Rutherford, 247 N.J. 165, 176 (2021). We owe no deference to conclusions of 

law that flow from established facts. State v. Perini Corp., 221 N.J. 412, 425 

(2015).

St. Theresa’s offers both statutory and constitutional arguments in 

support of reversal. We have long instructed that our courts “should not reach 

and determine a constitutional issue unless absolutely imperative in the 

disposition of the litigation.” Donadio v. Cunningham, 58 N.J. 309, 325-26 

(1971). Where, as here, there are two independent grounds to dispose of an 
20

appeal -- one statutory and one constitutional -- we will first resolve the 

statutory issue and address the Constitution only if necessary. 

In interpreting a statute, in this case the LAD, our goal is to identify and 

implement the intent of the Legislature. Smith v. Millville Rescue Squad, 225 

N.J. 373, 389 (2016). In doing so, our inquiry starts with the text of the statute 

itself. Ibid. If the text is unambiguous, our inquiry ends with the text and its 

ordinary, common-sense meaning controls. See id. at 389-90. We therefore 

begin with the text of the LAD. 

A.

The LAD provides in part that it is unlawful for an employer “to 

discharge” an employee “because of . . . marital status . . . [or] pregnancy.” 

N.J.S.A. 10:5-12(a). Although the LAD encompasses a wide variety of 

employment actions, it intentionally, and explicitly, declines to create a cause 

of action for others, explaining that 

it shall not be an unlawful employment practice . . . for 

a religious association or organization to utilize 

religious affiliation as a uniform qualification in the 

employment of clergy, religious teachers or other 

employees engaged in the religious activities of the 

association or organization, or in following the tenets 

of its religion in establishing and utilizing criteria for 

employment of an employee . . . . 

[Ibid. (emphases added).]
21

As relevant here, N.J.S.A. 10:5-12(a) does two things. First, it identifies 

certain actions by employers as subject to a cause of action by employees. 

Second, it approves other actions by employers as lawful and thus exempt 

from liability. The underscored text -- the LAD’s religious tenets exception --

is housed within the section of the statute devoted to protecting certain

employment decisions from a cause of action. That placement is significant. 

See, e.g., Malanga v. Township of West Orange, 253 N.J. 291, 310 (2023) 

(explaining that courts “look to other parts of the statute for context.”). 

For employers that are religious associations or organizations, N.J.S.A.

10:5-12(a) thus provides that two types of conduct will not give rise to a cause 

of action: (1) the use of religious affiliation as a job qualification for 

“employees engaged in the religious activities” of the organization; and (2) 

“following the tenets of its religion in establishing and utilizing criteria for 

employment of an employee.” 

Because the Legislature thus expressly prescribed an exception to 

liability under the LAD based on a religious institution’s reliance on the tenets 

of its faith in setting employment criteria, we agree with St. Theresa’s that the 

religious tenets exception is an affirmative defense which must be pled and 

proven, and the party asserting it carries both the burden of production and 

persuasion. Stewart v. N.J. Turnpike Auth., 249 N.J. 642, 657 (2022); R. 4:5-
22

3, -4. If the affirmative defense is pled and proven, the employer need not 

contest the plaintiff’s allegations.

Our cases concerning immunity under the Tort Claims Act (TCA) are 

instructive in this regard. For example, in Nieves v. Office of the Public 

Defender, we applied the TCA in the context of a public defender faced with a 

legal malpractice claim. 241 N.J. 567, 580 (2020). Generally speaking, when 

an attorney breaches a duty of care owed to a client, the attorney is liable for 

damages proximately caused by the breach. Gilbert v. Stewart, 247 N.J. 421, 

442-43 (2021). If that attorney is a public employee, the Tort Claims Act

applies. Nieves, 241 N.J. at 580. So, if a public defender is sued for legal 

malpractice, he can either disprove the plaintiff’s factual allegations or 

demonstrate that he is immune from liability as a public employee under 

N.J.S.A. 59:2-1. If there is no genuine dispute of material fact concerning the 

public defender’s status for purposes of the TCA, the case can be resolved on 

summary judgment. See id. at 585 (affirming the grant of summary judgment 

in favor of a public defender based on TCA immunity).

Similarly, the Consumer Fraud Act (CFA) authorizes one who has 

suffered an “ascertainable loss” because of another person’s “use or 

employment” of any “method, act, or practice” deemed unlawful under the 

CFA to recover that loss in an action at law. N.J.S.A. 56:8-19. But we have 
23

recognized that “learned professionals” are exempt from CFA claims 

stemming from the professional’s sales or marketing of services that they are 

licensed to provide. See, e.g., Macedo v. Dello Russo, 178 N.J. 340, 345-46 

(2004) (noting that “learned professionals [are] beyond the reach of the [CFA] 

so long as they are operating in their professional capacities” and that 

“advertisements by learned professionals in respect of the rendering of 

professional services are insulated from the CFA”). Thus, if a learned 

professional demonstrates that the plaintiff’s claims challenge actions or 

omissions performed in a professional capacity, including the advertisement of 

professional services, the professional is entitled to judgment as a matter of 

law when confronted with a claim arising under the CFA. See id. at 342-43 

(holding that a CFA complaint brought against a learned professional was 

properly dismissed); Vort v. Hollander, 257 N.J. Super. 56, 62-63 (App. Div. 

1992) (affirming the grant of summary judgment on a CFA claim because the 

“learned professional” exception applied). 

The statute of limitations defense is also “not self-executing” and must 

be affirmatively raised. Zaccardi v. Becker, 88 N.J. 245, 256 (1982). For 

example, the Legislature has prescribed that “a construction-defect action must 

be commenced within six years ‘after the cause of any such action shall have 

accrued.’” The Palisades at Fort Lee Condo. Ass’n, Inc. v. 100 Old Palisade, 
24

LLC, 230 N.J. 427, 434 (2017) (quoting N.J.S.A. 2A:14-1). When a defendant 

builder is sued for a construction defect, he can either argue that the 

construction was not defective or, if appropriate, raise the statute of limitations

as an affirmative defense. 

If the builder asserts the statute of limitations, he must show when the 

cause of action accrued. In the case of construction-defect actions, the cause 

of action accrues when “the building’s original or subsequent owners first

knew, or through the exercise of reasonable diligence, should have known of 

the basis for a cause of action.” Id. at 435. If there is no genuine dispute of 

material fact as to when the alleged defect was discovered, the case can be 

resolved on summary judgment; the judge need only decide whether it has 

been six years since accrual. But if the plaintiff raises a genuine dispute of 

material fact about when the defect was discovered, summary judgment is 

inappropriate, and the case should proceed. See, e.g., Brill, 142 N.J. at 528-

29.

The LAD similarly includes affirmative defenses. In Poff v. Caro, for 

example, the Law Division considered a complaint brought by the Division of 

Civil Rights against a property owner who had refused to rent a three-bedroom 

apartment “because he believed that the three males [seeking to rent the 

apartment] would likely get AIDS because they were homosexuals” and he 
25

“fear[ed] that his family might be exposed to a terrifying disease.” 228 N.J. 

Super. 370, 378, 380 (Law Div. 1987). Citing N.J.S.A. 10:5-5(n) -- which 

identifies what the term “real property” encompasses for purposes of the LAD 

and then states “provided, however, that, except as to publicly assisted housing 

accommodations, the provisions of this act shall not apply to the rental . . . of a 

single apartment or flat in a two-family dwelling, the other occupancy unit of 

which is occupied by the owner as a residence” -- “[t]he landlord contend[ed]

that he is exempt from the law against discrimination since he is renting an 

apartment in a two-family owner occupied house.” Id. at 379. Noting that 

“[t]he facts here indicate that the landlord had turned his premises into a three 

family not a two family house,” the court concluded that the asserted 

affirmative defense failed and that the landlord was “not exempt from the 

statute.” Ibid.

We see no meaningful distinction between the affirmative defenses

created in those settings and the religious tenets exception. In LAD cases

where a religious employer invokes the religious tenets exception, the 

employer must demonstrate that the challenged employment decision relied

solely on employment criteria adopted pursuant to the tenets of its religion. If 

the plaintiff employee fails to raise a genuine dispute of material fact as to 

whether the challenged employment decision relied solely on the religious
26

tenets of the employer, then the affirmative defense stands as an absolute bar 

to liability.3 Of course, when the record reveals questions of material fact 

regarding whether a religious employer relied exclusively on a plaintiff’s 

violation of a religious tenet in taking adverse employment action against the 

plaintiff, the matter before the court is not ripe for summary judgment. Brill,

142 N.J. at 528-29. 

With those principles in mind, we consider whether St. Theresa’s was 

entitled to summary judgment. We note, as an initial matter, our agreement 

with the Appellate Division that deciding whether St. Theresa’s terminated 

Crisitello for failing to adhere to the employment criteria St. Theresa’s had 

established “in following the tenets of its religion,” see N.J.S.A. 10:5-12(a), is 

within the court’s purview. Determining whether a religious employer’s 

employment action was based exclusively on the tenets of its religion requires 

application of only neutral principles of law and does not impermissibly 

entangle the courts in ecclesiastical matters. See McKelvey v. Pierce, 173 N.J. 

26, 51-53 (2002).

3

 We disagree with the Attorney General’s interpretation that the religious 

tenets exception affords to the employer nothing more than a legitimate, 

nondiscriminatory reason for an employment action under the McDonnell 

Douglas framework. If the affirmative defense is pled and proven, the 

McDonnell Douglas burden-shifting analysis is inapplicable.
27

B.

Based on the facts of this case, we conclude that St. Theresa’s has 

validly asserted the religious tenets exception as an affirmative defense and 

that Crisitello has not raised any genuine dispute of material fact regarding the 

applicability of that defense. We therefore find that St. Theresa’s was entitled 

to summary judgment as a matter of law.

The undisputed evidence of record shows that Crisitello signed two 

acknowledgment forms that provide:

My signature below indicates that I have received a 

copy of the Policies on Professional and Ministerial 

Conduct adopted by the Archdiocese of Newark; and 

that I have read and understand those Policies, 

including the Archdiocesan Code of Ethics, and agree 

to abide by all of the Policies and the Code of Ethics.

The Code of Ethics, which is the first section of the Ministerial Policies asks 

that all church personnel4“carefully consider each standard in the Code and 

within the Policies on Professional and Ministerial Conduct before agreeing to 

adhere to the standards and continue in service to the Archdiocese.” 

4 The Ministerial Policies define “[c]hurch personnel” to include “The Lay 

Faithful,” which includes “[a]ll paid personnel whether employed in areas of 

ministry or other kinds of services by the Archdiocese, its parishes, schools or 

other agencies; also, those who contract their services to Catholic Church 

agencies,” and “[a]ll volunteers.” 
28

The Code of Ethics instructs that church personnel “shall exhibit the 

highest Christian ethical standards and personal integrity” and “conduct 

themselves in a manner that is consistent with the discipline, norms and 

teachings of the Catholic Church.” The Code of Ethics also recites that “[a]ll 

Church personnel are required to read and sign the agreement to abide by these 

policies and the Archdiocesan Code of Ethics.” The Ministerial Policies go on 

to specify that “misconduct includes but is not limited to . . . [i]mmoral 

conduct,” defined as “[c]onduct that is contrary to the discipline and teachings 

of the Catholic Church.”

In a section titled “Standards of the Archdiocese as to Prevention of 

Immoral Conduct,” the Ministerial Policies provide that “[i]t is essential that 

Church personnel view their own actions and intentions objectively to assure 

that no observer would have grounds to believe that irregularity in conduct 

exists. All Church personnel have a responsibility to strive to uphold the 

standards of the Catholic Church in their day-to-day work and personal lives.” 

The Ministerial Policies further provide that it is “fundamental to the mission 

of the Archdiocese that Church personnel exhibit the highest ethical standards 

and personal integrity. The purpose of this policy is to insure that all Church 

personnel follow the ethical standards of the Catholic Church.” That section 
29

goes on to provide that church personnel are forbidden from engaging in 

“[a]dultery, flagrant promiscuity or illicit co-habitation.”

St. Theresa’s also provided a certification from Deacon John J. 

McKenna, which explained that

[o]ne of the tenets of the Roman Catholic Church is that 

sex outside of the institution of marriage is forbidden. 

To engage in sex outside of marriage is a sin. It is not 

consistent with the discipline, norms and teachings of 

the Roman Catholic Church, i.e. it violates the religious 

tenets of the Catholic Church.

The religious tenets exception allowed St. Theresa’s to require its 

employees, as a condition of employment, to abide by Catholic law, including 

that they abstain from premarital sex. Crisitello, a practicing Catholic and 

graduate of the St. Theresa School, acknowledged that St. Theresa’s required 

her to abide by the tenets of the Catholic faith, including that she abstain from 

premarital sex, as a condition of her employment. In other words, St. 

Theresa’s required adherence to Catholic law, and Crisitello knowingly 

violated Catholic law. 

The record evidence demonstrates that St. Theresa’s consistently 

maintained its position that Crisitello was terminated for violating Catholic 

law by engaging in premarital sex. From letters sent to Crisitello after her 

termination “confirm[ing] that . . . [St. Theresa’s] asked [her] to resign [her] 

position at [the] school for violation of the Code of Professional and 
30

Ministerial Conduct of the Archdioceses of Newark”; to Sister Lee’s testimony 

about the meeting in which she informed Crisitello of her termination; to St. 

Theresa’s response to the EEOC charge that “Crisitello was not terminated 

because of her pregnancy. She was terminated for violation of the Code of 

Professional and Ministerial Conduct . . . and not following the tenets of the 

Roman Catholic faith by engaging in sex outside of marriage”; to the position 

it has taken throughout this litigation, St. Theresa’s has remained steadfast in 

basing its employment action on Crisitello’s violation of the terms of her 

employment as permissibly derived from the tenets of the Catholic faith.

And Crisitello has presented no evidence to counter St. Theresa’s 

asserted position. There is no evidence that St. Theresa’s discriminated based 

on Crisitello’s pregnancy. It is undisputed that Sister Lee was unaware of the

pregnancy until Crisitello disclosed it while the two negotiated Crisitello’s 

salary and that St. Theresa’s did not terminate the employment of any pregnant 

teachers who were married. There is also no evidence of discrimination with 

respect to marital status. Crisitello admitted that, long before she became 

pregnant, it was commonly known that she was unmarried. The record is also 

clear that St. Theresa’s employed both married and unmarried teachers.

The Appellate Division reasoned that the lack of evidence regarding 

“how male or non-pregnant female teachers . . . who engaged in premarital sex 
31

were detected or treated” precluded summary judgment. Crisitello, 465 N.J. 

Super. at 231. The Appellate Division explained that because only women can 

become pregnant, it is evidence of pretext for an employer to discipline 

violations of its ban on premarital sex through observations of pregnancy or 

fortuitous discovery. Id. at 240-42. Thus, according to the Appellate Division,

an ecclesiastical employer cannot lawfully dismiss a member of a protected 

class for violating requirements of its employment agreement derived from

religious tenets unless the employer first determines, following an 

investigation, that no other employees violated the same or another religious 

tenet. 

We reject the Appellate Division’s novel suggestion that Crisitello’s 

firing was evidence of pretext simply because St. Theresa’s did not “survey” 

its employees to discover other transgressions of the faith. Neither the LAD 

nor our case law requires such an investigation, and we decline to impose this 

burden. 

The difficulty of such a rule is evident when it is applied to a secular 

employer. For example, if an unmarried, pregnant woman is fired for 

embezzling money and brings an action under the LAD, she will survive 

summary judgment by simply asserting that the reason for her termination --

that she was caught embezzling -- is mere pretext for discrimination, unless the 
32

employer had already investigated whether there were other instances of

embezzlement by married or nonpregnant employees, to rebut the claim of 

pretext. The fact that St. Theresa’s did not survey its employees to discover 

other transgressions cannot by itself carry the plaintiff’s burden of raising a 

genuine issue of material fact as to a religious employer’s affirmative defense 

based on the LAD’s religious tenets exception. 

Here, because Crisitello offers no evidence that the reason given for her 

termination was false, there exists no dispute of material fact and St. Theresa’s 

is entitled to judgment as a matter of law. The religious tenets exception of the 

LAD precludes recovery here. 

Because we decide this matter on the religious tenets exception, we do 

not reach the constitutional questions presented. 

IV.

We reverse the judgment of the Appellate Division and reinstate the trial 

court’s grant of St. Theresa’s motion for summary judgment and dismissal of 

the complaint.

CHIEF JUSTICE RABNER, JUSTICE PATTERSON, and JUDGE 

HAAS (temporarily assigned) join in JUSTICE SOLOMON’s opinion. 

JUSTICE PIERRE-LOUIS filed a concurrence. JUSTICES WAINER APTER 

and FASCIALE and JUDGE SABATINO (temporarily assigned) did not 

participate.
1

Victoria Crisitello,

Plaintiff-Respondent,

v.

St. Theresa School,

Defendant-Appellant.

JUSTICE PIERRE-LOUIS, concurring.

Today the majority holds that the religious tenets exception to the Law 

Against Discrimination (LAD) is an affirmative defense such that once an 

entity has established that an adverse employment action falls within that 

exception, the framework established in McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973), does not apply. I disagree with such a broad application 

of the exception and instead agree with the Attorney General that the religious 

tenets exception is no more than a means for a sectarian employer to satisfy 

prong two of the McDonnell Douglas framework. 

Applied to this context, the second prong of McDonnell Douglas allows

a religious employer to show that the adverse employment action resulted from

a lawful nondiscriminatory reason -- in other words, because of a religious 

tenet. However, a religious employer that has invoked the religious tenets 
2

exception, thereby satisfying prong two, is still subject to prong three of the 

McDonnell Douglas framework, pursuant to which the plaintiff must show by 

a preponderance of the evidence that the employer’s proffered

nondiscriminatory reason is a pretext for discriminatory action.

I agree with the majority that plaintiff Victoria Crisitello’s LAD action 

fails, but I depart from the majority’s analysis of treating the LAD’s religious 

tenets exception as an affirmative defense such that the McDonnell Douglas

framework does not apply. In my view, plaintiff’s claim fails because the 

record does not suggest defendant’s proffered religious tenets are a pretext for 

plaintiff’s termination, and therefore, plaintiff has failed to meet her 

evidentiary burden at step three of the McDonnell Douglas framework. 

Accordingly, I respectfully concur in the decision. 

I.

This Court has on many occasions referenced the Legislature’s intent 

that the LAD’s “worthy purpose is no less than eradication of ‘the cancer of 

discrimination’ in our society.” Richter v. Oakland Bd. of Educ., 246 N.J. 

507, 537 (2021) (quoting Smith v. Millville Rescue Squad, 225 N.J. 373, 390 

(2016)). To achieve that goal, “the LAD is given liberal construction, for the 

‘more broadly [the LAD] is applied, the greater its antidiscriminatory 

impact.’” Ibid. (alteration in original) (quoting Smith, 225 N.J. at 390).
3

The plain text and legislative history of the LAD, N.J.S.A. 10:5-1 to -49,

signal that the Legislature did not intend to create a blanket exception for 

religious entities to overcome a LAD employment action by merely invoking a 

religious tenet that justified its decision. In 1945, when the LAD was first 

enacted, religious employers were not included in the statute’s definition of 

“employer.” See L. 1945, c. 169. Thus, the LAD’s antidiscrimination 

principles did not initially apply to religious employers. In 1977, however, the 

Legislature amended the LAD to broaden the definition of “employer” to 

include religious entities in order to “remove [the] ‘blanket’ exemption” for 

religious employers from the LAD. L. 1977, c. 122; see Statement to S. 1608

(Nov. 8, 1976) (Senate Statement). This amendment likewise created the 

religious tenets exception.

A detailed review of the text of N.J.S.A. 10:5-12 is instructive in 

interpreting the manner in which the Legislature chose to articulate the 

discriminatory actions that fall within the LAD and those that do not. After an 

introductory clause that declares “[i]t shall be an unlawful employment 

practice, or, as the case may be, an unlawful discrimination,” N.J.S.A. 10:5-12 

sets forth a list of practices declared unlawful if based on protected 

characteristics such as race, age, sexual orientation, marital status, and 
4

pregnancy. The statute then lists exceptions to that general rule. One 

exception is the religious tenets exception, which states

it shall not be an unlawful employment practice . . . for 

a religious association or organization to utilize 

religious affiliation as a uniform qualification in the 

employment of clergy, religious teachers or other 

employees engaged in the religious activities of the 

association or organization, or in following the tenets 

of its religion in establishing and utilizing criteria for 

employment of an employee . . . .

[N.J.S.A. 10:5-12(a).]

The exception makes otherwise discriminatory actions nondiscriminatory -- if 

the entity took the action in “following the tenets of its religion in establishing 

and utilizing criteria for employment of an employee.” Ibid. Significantly, in 

the Senate Statement accompanying the bill amending the statute, the

Legislature noted that “[a]ny other [prohibited] basis for selection is 

unlawful.”1 In other words, if the basis for the apparently discriminatory

1 Defendant St. Theresa School argues, in line with the majority’s holding, 

that a proffered religious tenet basis for an adverse employment action is not 

“subject to a determination of whether the stated reason for the discharge was 

merely pretext for unlawful discrimination.” But defendant further contends 

that “any asserted factual dispute in this case is immaterial.” Given the LAD’s 

remedial purpose of eradicating discrimination, it is unlikely that the 

Legislature intended for religious employers to simply invoke their religious 

tenets as the basis for adverse action with no further inquiry into whether the 

action was actually motivated by discriminatory intent. 
5

employment action is something other than the employer’s religious tenets, the 

action falls within the LAD’s prohibitions and is unlawful. 

By way of example, if a secular employer takes an adverse employment 

action based on an employee’s marital status or pregnancy, that is very clearly 

an unlawful employment action under the LAD. If a religious employer, 

however, takes the same action, but the employer asserts that the action was 

based on following its religious tenets, it is not an unlawful employment action 

or unlawful discrimination. In other words, the exception transforms a 

discriminatory and unlawful action into nondiscriminatory action by virtue of 

the religious tenet undergirding the conduct. This is true unless, of course, the 

proffered religious tenet motive is proven to be a pretext for discriminatory 

action. 

II.

The LAD provides a cause of action for aggrieved employees to file suit 

against their employers if they believe their employer committed an adverse 

employment action against them based on a protected characteristic. In the 

rare employment discrimination case in which a plaintiff presents direct 

evidence of an employer’s discriminatory animus, the McDonnell Douglas

framework, elaborated upon below, does not apply. In those cases involving 

direct evidence of discrimination, “the employer must . . . produce evidence 
6

sufficient to show that it would have made the same decision if illegal bias had 

played no role in the employment decision.” Smith, 225 N.J. at 395 (quoting

Fleming v. Corr. Healthcare Sols., Inc., 164 N.J. 90, 100 (2000)).

Routinely, employment discrimination complaints under the LAD are 

assessed using the “procedural burden-shifting methodology” set forth in

McDonnell Douglas, which allows a plaintiff to use circumstantial evidence to

establish a claim of discrimination against their employer. Meade v. Township

of Livingston, 249 N.J. 310, 328 (2021) (quoting Zive v. Stanley Roberts, Inc., 

182 N.J. 436, 447 (2005)). Under that framework,

(1) the plaintiff must come forward with sufficient 

evidence to constitute a prima facie case of 

discrimination; (2) the defendant must then show a 

legitimate nondiscriminatory reason for its decision; 

and (3) the plaintiff must then be given the opportunity 

to show that defendant’s stated reason was merely a 

pretext or discriminatory in its application.

[Ibid. (quoting Henry v. Dep’t of Hum. Servs., 204 N.J. 

320, 331 (2010)).]

The first prong of McDonnell Douglas requires the plaintiff to state a 

prima facie case of discrimination. Ibid. “A plaintiff alleging discriminatory 

discharge must show: ‘(1) that plaintiff is in a protected class; (2) that plaintiff 

was otherwise qualified and performing the essential functions of the job; (3) 

that plaintiff was terminated; and (4) that the employer thereafter sought 

similarly qualified individuals for that job.’” Smith, 225 N.J. at 395 (quoting 
7

Victor v. State, 203 N.J. 383, 409 (2010)). At this stage, the plaintiff’s 

evidentiary burden is “rather modest: it is to demonstrate to the court that 

plaintiff’s factual scenario is compatible with discriminatory intent -- i.e., that 

discrimination could be a reason for the employer’s action.” Zive, 182 N.J. at

447 (quoting Marzano v. Comput. Sci. Corp. Inc., 91 F.3d 497, 508 (3d Cir. 

1996)).

Once a prima facie case of discrimination is established, prong two of 

McDonnell Douglas gives the employer an “opportunity to rebut the

presumption of discrimination ‘with admissible evidence of a legitimate, nondiscriminatory reason for its rejection of the employee.’” Smith, 225 N.J. at 

395 (quoting Bergen Com. Bank v. Sisler, 157 N.J. 188, 210 (1999)). 

“If the employer [succeeds] in rebutting the presumption of 

discrimination, the burden shifts back to the plaintiff to establish by a 

preponderance of the evidence that the employer’s proffered reason for the 

termination was in fact a pretext for discrimination” -- prong three of 

McDonnell Douglas. Id. at 395-96 (citing Sisler, 157 N.J. at 211). To prove 

that the employer’s reason is pretext, “a plaintiff must do more than simply 

show that the employer’s [proffered legitimate, nondiscriminatory] reason was

false; he or she must also demonstrate that the employer was motivated by 

discriminatory intent.” Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). 
8

“Employees typically try to establish pretext in one of three ways: (1) by 

showing that the employer’s articulated reason had no basis in fact; (2) by 

showing that the reason would have been insufficient to motivate the 

employer’s action; or (3) by showing that the reason did not actually motivate 

that action.” Blount v. Stanley Eng’g Fastening, 55 F.4th 504, 510 (6th Cir. 

2022) (quotation omitted).

A series of hypothetical examples is helpful in assessing the bounds of 

the McDonnell Douglas framework with respect to LAD claims against both 

secular and religious employers. Expanding on the examples above, if a 

secular employer admits that it fired an employee because she became 

pregnant, that is clearly an unlawful employment action under the LAD. The 

McDonnell Douglas framework would not apply because the plaintiffemployee has direct evidence in the form of an admission that the employer 

has violated the LAD in firing her. 

However, if a plaintiff does not have direct evidence of discrimination 

and claims that her secular employer fired her because of her pregnancy, 

McDonnell Douglas does apply and the plaintiff would likely meet the “rather 

modest” evidentiary burden under prong one of McDonnell Douglas by 

presenting a factual scenario “compatible with discriminatory intent.” Zive, 

182 N.J. at 447. Then, if the employer submits that it fired that same 
9

employee for poor performance and provides evidence to support that 

assertion, the employer would satisfy prong two of McDonnell Douglas by

providing a legitimate, lawful, nondiscriminatory reason for the termination. 

Prong three of McDonnell Douglas is then implicated; to survive summary 

judgment, the plaintiff must prove by a preponderance of the evidence that the 

asserted lawful reason is merely a pretext for a discriminatory motive, that is, 

the plaintiff was actually fired because of pregnancy, despite the employer’s 

assertions.

The same would be true if a religious employer asserts that it fired an 

employee for poor performance -- that is, a legitimate, lawful, 

nondiscriminatory employment reason to terminate an employee. But if the 

plaintiff alleges that their race was the actual reason for their firing, prong 

three of the McDonnell Douglas burden-shifting framework would certainly 

allow the plaintiff to present evidence of pretext to establish that the 

termination was racially motivated.

The analysis is no different when the religious tenets exception is 

invoked. As applicable to this case, if a religious employer asserts that it fired 

an employee for her pregnancy, which violates the religious tenets of the 

employer’s faith because the employee was unwed and had therefore engaged 

in premarital sex, that serves as a religious employer’s legitimate, lawful, 
10

nondiscriminatory reason for the termination under the religious tenets 

exception. But just as in every other scenario when an employer proffers a 

legitimate, nondiscriminatory reason for the adverse employment action, the 

plaintiff must then be allowed to prove by a preponderance of the evidence 

that the employer’s asserted lawful motive is merely a pretext for a 

discriminatory reason. If a plaintiff in such a situation had emails, for 

example, in which the employer seemingly expressed displeasure in having a 

pregnant woman on staff, apart from the religious tenets basis, that would be 

sufficient to show pretext. Such evidence would show that although the 

employer asserted the religious tenets of their religion, that was a cover for the 

real reason -- discrimination against a pregnant employee.

III.

The majority holds that once a defendant has “pled and proven” the 

religious tenets exception, “the McDonnell Douglas burden-shifting analysis is 

inapplicable,” and the general summary judgment standard of determining 

whether a genuine issue of material fact exists is triggered. Ante at ___ (slip 

op. at 25, 26 n.3).2 Our courts, however, have consistently applied the 

2

 The majority also states that if the religious tenets “affirmative defense is 

pled and proven, the employer need not contest the plaintiff’s allegations.” 

Ante at ___ (slip op. at 22). That statement seems to be in line with 

defendant’s argument that once the religious tenets exception is established,
11

McDonnell Douglas framework “to determine the proofs necessary to establish 

[a plaintiff’s] LAD claim and whether summary judgment was appropriately 

granted” or denied. Grande v. Saint Clare’s Health Sys., 230 N.J. 1, 23-30

(2017) (assessing the summary judgment standard through the McDonnell 

Douglas framework); see also Meade, 249 N.J. at 330-32 (finding summary 

judgment improper after analyzing the facts of the case pursuant to the 

McDonnell Douglas burden-shifting framework); Henry, 204 N.J. at 332 (“[I]f 

the plaintiff cannot meet his or her obligation under the McDonnell Douglas

methodology, the employer will prevail on summary judgment.”); Sisler, 157 

N.J. at 208-10, 217-18 (finding summary judgment improper and noting that

“this Court has adopted the McDonnell Douglas approach ‘as a starting point’ 

in analyzing claims under the LAD”); El-Sioufi v. Saint Peter’s Univ. Hosp., 

382 N.J. Super. 145, 166-75 (App. Div. 2005) (finding summary judgment 

appropriate because the plaintiff failed to establish pretext and the evidence 

was overwhelming that the adverse employment actions taken against her were 

based on legitimate, nondiscriminatory reasons); Jason v. Showboat Hotel & 

Casino, 329 N.J. Super. 295, 303-08 (App. Div. 2000) (finding summary 

judgment appropriate because the plaintiff failed to carry his burden to show 

that ends the inquiry and the case, despite the majority’s holding that a plaintiff 

can survive summary judgment if a genuine dispute of material fact exists.
12

that the defendant’s legitimate, nondiscriminatory reason for his termination 

was pretextual). The manner in which our trial courts determine whether 

summary judgment is appropriate in LAD matters is thus to conduct the 

burden-shifting analysis.

The goal of the McDonnell Douglas burden-shifting analysis is to 

effectuate the purpose of LAD by allowing courts to assess claims through a 

framework that challenges the veracity of the employer’s proffered reason. 

See Herx v. Diocese of Fort Wayne-South Bend Inc., 48 F. Supp. 3d 1168, 

1180 (N.D. Ind. 2014) (finding that, in the context of the Americans with 

Disabilities Act (ADA)’s religious tenets exception, the plaintiff was “entitled 

to a chance to show,” under prong three of McDonnell Douglas, that the 

employer’s “proffered justification wasn’t its true reason for nonrenewing her 

contract -- that her infertility was”). Indeed, at the heart of every LAD claim 

is the allegation that the motivation behind an adverse employment action was 

discriminatory.

The majority’s conclusion that the religious tenets exception is an 

affirmative defense -- similar to other affirmative defenses that end the case 

once proven -- is contrary to the Legislature’s decision to subject religious 

employers to the LAD’s antidiscrimination principles. And the majority’s 

comparison to other statutes’ affirmative defenses in support of this holding is 
13

not dispositive because the LAD’s liberal, remedial intent does not lend itself 

to comparison to dissimilar statutes. See, e.g., Fuchilla v. Layman, 109 N.J. 

319, 332-38 (1988) (holding the notice provisions of the Tort Claims Act 

(TCA) did not apply to LAD actions, as the purposes of the two statutes are 

different); Victor, 203 N.J. at 410 n.11 (noting that the statutory definitions for 

disability under the LAD are “significantly broader than those in the ADA”).

Though the majority is correct that the LAD includes an affirmative 

defense in another context, the rental of “real property,” that provision’s 

language explicitly expresses the Legislature’s intent to limit the LAD’s 

protections to specific rental properties, as opposed to the language contained 

in the religious tenets exception which is stated much differently. Compare

N.J.S.A. 10:5-5(n) (“the provisions of this act shall not apply to the rental of

. . .” (emphasis added)), with N.J.S.A. 10:5-12(a) (“it shall not be an unlawful 

employment practice . . .” (emphasis added)). It is evident that the language of 

N.J.S.A. 10:5-5(n) signals an affirmative defense that once established ends 

the case. 

In Poff v. Caro, in which a three-family home property owner refused to 

rent an apartment due to his discriminatory beliefs against gay men, the Law 

Division concluded that N.J.S.A. 10:5-5(n) did not shield the owner from 

liability because the statute exempted two-family -- not three-family -- homes 
14

from liability under the LAD. 228 N.J. Super. 370, 378-79 (Law Div. 1987). 

However, if the property owner did in fact occupy and rent a two-family home, 

N.J.S.A. 10:5-5(n)’s affirmative defense would apply and shield the owner 

from liability, regardless of any overtly discriminatory animus of the owner. 

In other words, even if the tenants in Poff had direct evidence of 

discrimination or could prove pretext, they nevertheless could not survive 

summary judgment. That is very different from the contours of the majority’s 

asserted religious tenets affirmative defense, pursuant to which, if the 

employee can prove pretext, the employee could potentially survive summary 

judgment due to asserting a genuine dispute of fact.

Furthermore, the other affirmative defenses that the majority cites 

operate differently in practice than the articulated religious tenets defense 

would. In the TCA example, once the affirmative defense is established that 

the defendant is immune from liability based on his status as a public defender, 

that is the end of the case, unless there is a genuine issue of material fact 

concerning the defendant’s status for immunity. See ante at ___ (slip op. at 

22). Similarly, in the statute of limitations example, the majority notes that if 

there is a genuine dispute of material fact as to when the action accrued for 

purposes of calculating the statute of limitations, summary judgment is 

inappropriate. See ante at ___ (slip op. at 23-24). In both of those scenarios, 
15

the potential genuine issues of material fact that would preclude summary 

judgment relate to the applicability of the affirmative defense in the first 

instance -- whether the defendant was a public defender or whether the statute 

of limitations date has passed -- not to the merits of the case. That is a very 

meaningful distinction between those affirmative defenses and the majority’s 

articulated religious tenets affirmative defense. 

The majority instructs that if a genuine dispute of material fact exists as 

to whether the employer relied solely on its religious tenets in justifying the 

adverse action, summary judgment is improper. See ante at ___ (slip op. at 

25-26). This necessarily instructs trial courts to analyze the merits of the 

plaintiff’s claim to decipher whether the employer’s proffered reason is true, 

or a pretext for unlawful discrimination. Because of this, even if the religious 

tenets exception is applicable, pled, and proven, a plaintiff can still defeat the 

employer’s motion for summary judgment. By contrast, if parties stipulate 

that the statute of limitations has passed and therefore that defense applies, the 

case is over. As noted, if a property owner refuses to rent an apartment in their 

two-family home for discriminatory reasons and raises the affirmative defense 

found in N.J.S.A. 10:5-5(n), the case is over. The inquiry into whether an 

employer’s proffered reason for an adverse employment action is pretextual is

not the same as the mechanical application of whether an event occurred on a 
16

particular date, like in the statute of limitations context, or whether a rental

property is a two-family or three-family home, like in Poff. Such a construct 

that searches the merits of the LAD claim is unlike the other affirmative 

defense the majority cites.

Additionally, the Court’s holding replaces the McDonnell Douglas

burden-shifting methodology with the general summary judgment standard 

when a religious entity has invoked the religious tenets exception. Ante at ___ 

(slip op. at 25-26). I see no reason for this change. The majority articulates 

that when there are “questions of material fact regarding whether a religious 

employer relied exclusively on a plaintiff’s violation of a religious tenet in 

taking adverse employment action against the plaintiff, the matter before the 

court is not ripe for summary judgment.” Ante at ___ (slip op. at 26). That is 

almost the same inquiry found within prong three of McDonnell Douglas: 

shifting the burden back to the plaintiff to establish by a preponderance of the 

evidence that the employer’s proffered reason (whether based on a religious 

tenet or otherwise) is pretext for discriminatory action. Taking the same 

inquiry that our courts have been applying for decades and removing it from 

the paradigm of the McDonnell Douglas framework will do nothing but cause 

confusion among the trial courts regarding the proper method of analyzing 

whether a case under the LAD has been established when the religious tenets 
17

defense has been proffered. Doing so departs from our case law which has

clearly established that the proper way to assess summary judgment in LAD 

cases involving circumstantial evidence of discrimination is through the 

McDonnell Douglas framework. 

The Court opines that genuine disputes of material facts will prevent 

summary judgment in these LAD cases. In the general summary judgment 

context, outside the three-step burden-shifting of McDonnell Douglas, courts 

“must accept as true all the evidence which supports the position of the party 

defending against the motion and must accord him [or her] the benefit of all 

legitimate inferences which can be deduced therefrom.” Brill v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 535 (1995) (alteration in original) (quoting 

Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)). A plaintiff’s allegations of 

discrimination thus must be viewed in the light most favorable to her and the 

court must draw all reasonable inferences in her favor. Id. at 540; Winberry 

Realty P’ship v. Borough of Rutherford, 247 N.J. 165, 176 (2021). 

By circumventing the McDonnell Douglas framework, the Court has 

seemingly created a lesser burden for plaintiffs to sustain a discrimination 

claim against their religious employers. That is, plaintiffs who were once 

subject to the preponderance of the evidence standard under prong three of 

McDonnell Douglas are now able to sustain their claim if they raise a genuine 
18

issue of material fact as to whether their employer relied solely on its religious 

tenets in commencing the adverse employment action, an inquiry viewed in the 

light most favorable to the plaintiff. If a plaintiff has any credible evidence 

that their religious employer did not solely rely on its religious tenets, now 

summary judgment would seemingly be improper. Conversely, prong three of 

McDonnell Douglas instructs that such limited proof is not enough to sustain a 

LAD claim; to prove pretext, a plaintiff “must also demonstrate that the 

employer was motivated by discriminatory intent.” Viscik, 173 N.J. at 14.

In light of the Court’s holding, there is no clear framework for trial 

courts to examine whether the religious tenets basis for the adverse 

employment action was pretextual. My concern, going forward, is that taking 

this LAD inquiry outside the well-established burden-shifting methodology 

and treating the religious tenets exception as an affirmative defense similar to 

a statute of limitations is contrary to the Legislature’s intent and will have the 

unintended result of needlessly confusing trial courts, or worse, dismissing 

worthy claims in which evidence of pretext exists. There is no principled 

reason for restructuring the manner in which LAD claims are assessed after 

decades of this type of analysis pursuant to McDonnell Douglas for this one 

class of employers.
19

IV.

Applying the McDonnell Douglas framework to this case, plaintiff must

first establish a prima facie case of discriminatory discharge. Plaintiff’s 

burden at this stage is “rather modest” -- she merely needs to show that 

“discrimination could be a reason for the employer’s action.” Zive, 182 N.J. at

447 (quoting Marzano, 91 F.3d at 508). It is not disputed that (1) plaintiff’s 

pregnancy places her in a protected class, (2) that she was otherwise qualified 

and performing the essential functions of the job, (3) that she was terminat ed, 

and (4) that after her termination, defendant sought similarly qualified 

individuals for that job. See Victor, 203 N.J. at 409. Plaintiff’s claim that 

defendant fired her after she disclosed that she was pregnant sufficiently 

alleges that discrimination could have been a reason for the termination.

Turning to prong two, defendant has carried its burden and proffered a 

legitimate, lawful, nondiscriminatory reason for plaintiff’s termination by 

invoking the religious tenets as a reason for the adverse action. Even plaintiff 

conceded that she was aware that premarital sex violated the tenets of the 

Catholic Church.

The main dispute in this case centers around prong three -- whether 

plaintiff has carried her burden of showing that defendant’s asserted religious 

tenet is merely a pretext for discrimination. Plaintiff does not present any 
20

evidence that she was discriminated against, or fired, for being pregnant 

unrelated to defendant’s proffered religious tenets. Plaintiff similarly provides 

no evidence that defendant’s proffered reason for her termination is false.

Additionally, the evidence does not suggest disparate treatment; to the 

contrary, the firing of a male employee at another school within the 

Archdiocese of Newark for the same reason -- premarital sex, which resulted 

in a child out of wedlock -- shows that the Archdiocese at large is relying on

their religious tenets to make these decisions.

In past cases in which our courts found sufficient evidence of unlawful 

pretext to withstand summary judgment, those plaintiffs put forth more 

evidence to carry their burden. See Meade, 249 N.J. at 331 (where the plaintiff 

submitted evidence of gender-based comments from councilmembers who 

voted to terminate her, including comments that a male subordinate took issue 

with reporting to a woman and that “Michele [Meade] would not be having this 

problem if her name was Michael”); DeWees v. RCN Corp., 380 N.J. Super. 

511, 529-31 (App. Div. 2005) (where the plaintiff submitted evidence of (1) 

reassignments of poor-performing younger men within the company instead of

terminations, (2) hostile interactions with her male supervisor, (3) sexist 

comments made by the company’s male president, and (4) her employer’s 
21

attempts to reduce her bonus and change her stock option terms without 

considering similar actions for male executives).

Based on the evidence in the record, plaintiff has failed to establish, by a 

preponderance of the evidence, pretext for the adverse action in this case. 

Therefore, I believe that plaintiff’s LAD action fails under prong three of 

McDonnell Douglas, and therefore summary judgment is appropriate for 

defendant.

V.

For those reasons, I respectfully concur.